This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




State of Minnesota,



Cheryl Lynn Thompson,


Filed March 10, 1998

Reversed and remanded

Klaphake, Judge

Dissenting, Randall, Judge

Dakota County District Court

File No. K9-95-1760

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

James C. Backstrom, Dakota County Attorney, Jody A. Kieser, Assistant County Attorney, Dakota County Judicial Center, 1560 West Highway 55, Hastings, MN 55033 (for appellant)

John M. Stuart, State Public Defender, Suite 600, 2829 University Avenue SE, Minneapolis, MN 55414; and

Michael F. Cromett, Assistant Public Defender, E-1314 First National Bank Building, St. Paul, MN 55101 (for respondent)

Considered and decided by Randall, Presiding Judge, Klaphake, Judge, and Willis, Judge.



The state appeals the district court's sentencing of respondent Cheryl Lynn Thompson for the offense of felony theft by wrongfully obtaining public assistance in violation of Minn. Stat. §§ 256.98; 393.07, subd. 10(c); 609.52, subd. 3(2) (1996). The court accepted respondent's guilty plea, but granted her a stay of adjudication over the state's objection. The state claims the court improperly used its inherent authority to stay adjudication. Because the state did not clearly abuse its discretion in exercising the charging function in this case and there are no "special circumstances" supporting a stay of adjudication, we reverse and remand for further proceedings.


Under the separation of powers doctrine, the prosecutor has the sole authority to charge persons with crimes, and the judiciary may not interfere with that authority absent evidence of selective or discriminatory prosecution or an abuse of prosecutorial discretion. State v. Krotzer, 548 N.W.2d 252, 255 (Minn. 1996) (citing Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S. Ct. 663, 668-69 (1978)). In Krotzer, the supreme court concluded that a stay of adjudication of a defendant's third-degree criminal sexual conduct charge did not violate the separation of powers doctrine because the court had "inherent judicial power" to stay adjudication in the interests of justice and under the "special circumstances" of the case. Krotzer, 548 N.W.2d at 254-55. More recently, the supreme court limited Krotzer and stated that a stay of adjudication should be used only "sparingly" and only to "avoid[] an injustice resulting from the prosecutor's clear abuse of discretion in the exercise of the charging function." State v. Foss, 556 N.W.2d 540, 541 (Minn. 1996).

There is no alleged abuse of prosecutorial discretion in this case. Rather, the parties dispute whether the stay of adjudication is supported solely by "special circumstances." Here, respondent's theft occurred at a time when she was suffering from depression, and she and her four children were experiencing severe financial difficulties. The supreme court recently rejected a similar argument in another welfare fraud case. See State v. Hauer, No. C5-96-249 (Minn. Dec. 11, 1996) (order rejecting claim of special circumstances in welfare fraud case, stating, "In almost every case of [welfare fraud], a case can be made that it might make more sense to stay adjudication."). Thus, while respondent's circumstances explain her motive for committing the offense, they do not excuse her conduct. For these reasons, we reverse the district court's stay of adjudication and remand for further proceedings. The facts of this case do not show the "special circumstances" or abuse of prosecutorial discretion that would warrant a stay of adjudication.

The dissent argues that Krotzer and its progeny are inapplicable in this case. The dissent contends that because there was a "written plea agreement received into evidence without objection," the district court did not usurp the prosecutor's charging function by imposing a stay of adjudication. Our review of the record reveals, however, that there was no valid plea agreement prior to entry of respondent's guilty plea. In respondent's "PETITION TO ENTER PLEA OF GUILTY," which was drafted by defense counsel and signed by only respondent, defense counsel wrote that there was a "Sentencing Agreement[- -]Stay of Adjudication." This reference, alone, is insufficient to establish a valid plea agreement. Then, during the beginning of the plea hearing, the judge stated that the parties had discussed the matter off the record, and "[t]he court after listening to arguments of both counsel did offer to the defendant two options if she were willing to enter a plea of guilty to the charge." One option was stay of adjudication and the other option was stay of imposition. After enumerating these "options," the judge asked the prosecutor if he had "accurately set forth the arguments that [the prosecutor] made to [the court], and the prosecutor immediately replied, "I still - - for the record the State does object to the stay of adjudication." Although the dissent references a later portion of the hearing in which the prosecutor stated, "That would be acceptable," it is clear from the context of the hearing transcript that the prosecutor was referring to the probation to be imposed, not to the court's proposed stay of adjudication. Thus, the record includes no evidence of a valid plea agreement that would affect our analysis in this case.

Reversed and remanded.

Randall, Judge (dissenting).

I respectfully dissent. The power of district courts to stay adjudication of sentences is correctly stated. The majority properly notes State v. Krotzer, 548 N.W.2d 252 (Minn. 1996). Thus, the issue of whether a district court's use of a stay of adjudication as part of a sentence violates the separation of powers doctrine has been settled. It does not. Krotzer, 548 N.W.2d at 254.

In all stay of adjudication cases since Krotzer, whether in this court or the Minnesota Supreme Court, the main complaint by the prosecution has been that it "interferes with their right to charge." I can only point out that nothing has ever interfered with the right of the prosecution in Minnesota to take part with the defense attorney in offering a plea agreement to the district court judge, which, if accepted by the district court judge, becomes a factual legal basis upon which to sentence. That is exactly what happened in this case. The prosecution should not now be allowed to claim after the fact that they wish they had made a different bargain.

Respondent's brief correctly states in footnote 2 on page 3 the following:

The district court file includes the Petition to Enter Plea of Guilty in respondent's case. This Petition, which was received into evidence without objection from the prosecutor, contains the following statement of the plea agreement: "Sentencing Agreement stay of adjudication, restitution for welfare benefits received in Nov., Dec. of 1993, Jan., Feb., March of 1994 that were in excess of the amount of welfare Def[endant] entitled to given family and income."

(Emphasis added) (citations omitted).

The state's own appendix includes the transcript of the sentencing hearing which includes, as a direct quote, in pertinent part, the following:

THE COURT: Kari, this is the matter of Cheryl Lynn Thompson, file K9951760. Mark McDonough on behalf of the defendant and Jody --

MS. KIESER: Kieser, K-i-e-s-e-r.

THE COURT: On behalf of the state. It's my understanding that we have discussed this matter off the record. The court after listening to arguments of both counsel did offer to the defendant two options if she were willing to enter a plea of guilty to the charge. Option number one would be that the court would sentence her as a stay of imposition of sentence and make her pay restitution for the month of -- the period of November 23rd to December 28 or, option number two, the court would sentence her to a stay of adjudication but make her pay entire benefits of $3,792.00.

A few pages later in the transcript of the sentencing hearing, the district court stated, in summing up the plea agreement and the sentencing, the following:

THE COURT: Okay. All right. With that then based upon what I think are unusual circumstances in this matter and the date of the matter as to when it occurred and the previous dissertation I put on the record, the court will stay adjudication, place this young lady on probation for a period of zero to normally we do five years, because of the amount involved.

MS. KIESER: That would be acceptable.

The state's attorney, Ms. Kieser, claimed at oral argument before this court that her words to the trial judge "[t]hat would be acceptable" did not validate the plea agreement and the sentencing, but only went to validate the probationary period of five years. The transcript of the sentencing hearing shows no qualification on the prosecutor's simple affirmative statement "[t]hat would be acceptable."

After that exchange, the state raises the question of whether the court was going to impose community work service, and the court stated on the record that it would add that as a condition, and defense counsel stated that he had no objection. Prior to this exchange, the court did note that the prosecution objected to a stay of adjudication. But the record shows the plea negotiations were translated into a written petition to plead guilty, which included the precise term "stay of adjudication."

We know from Krotzer that district courts have the power to impose a stay of adjudication as part of pronouncing sentences. We know that the prosecution has a right, as part of plea bargain negotiation, to come to an agreement with the defendant's attorney, and then present that to the district court for its inspection and then approval or disapproval. Here, the record shows that the district court accepted the plea agreement, which was spelled out in the "petition to enter plea of guilty," which petition was received into evidence without objection. Then the plea agreement as to sentencing was later spelled out in the transcript by the court reporter taking down the comments of the court, the prosecuting attorney, and the defense attorney.

Given the right of the state to enter into plea negotiations, and the discretionary power of a district court to accept or reject plea agreements, this case should be affirmed on all issues. There is no legal basis to reverse. The state did not make a motion to withdraw its assent to the plea agreement. The state simply claims that it does not like it.

Based on this record, there is no reason to delve into a Foss analysis. See State v. Foss, 556 N.W.2d 540, 541 (Minn. 1996) (stating Krotzer should be applied only to avoid injustice resulting from clear abuse of discretion by state in its charging function). Here, the issue is not discretionary power of the state to charge a crime. The issue is simply whether the State of Minnesota can be held to the terms of a written plea agreement received into evidence without objection.

I dissent and would have affirmed the district court on the sentence given to respondent.